Well, for starters, it’s not enforceable in Texas. And it can form the basis of a hefty legal malpractice suit as a client of Texas law firm Andrews Kurth discovered when the jury awarded him about $200 million against the firm.
According to a November 17, 2015 article on abovethelaw.com, titled Which Biglaw Firm Just Got Hit With A $200 Million Malpractice Verdict?, Scott D. Martin sued Andrews Kurth for malpractice and won the huge jury verdict. Mr. Martin was reportedly in a dispute with his brother regarding the family business, and after attending mediation with his mother, a proposed settlement agreement was drafted and signed by his mother and brother. According to the lawsuit, Andrews Kurth reviewed the proposed agreement and advised Mr. Martin that the agreement protected his interests. However, when his brother breached the agreement and Mr. Martin sued, he learned that the agreement was an “unenforceable agreement to agree.” In other words, despite the law firm’s $6 million bill to Mr. Martin, he alleged their advice amounted to malpractice. During litigation, he also discovered the firm’s internal emails mocking him and his “precarious financial condition.”
The firm issued a statement disagreeing with the verdict and vowing to seek post-verdict and possibly appellate relief, which could take years. Mr. Martin’s Motion for Entry of Judgment and supporting documents, including the verdict sheets, are available here from Above the Law.
This case should be a cautionary tale for legal consumers and attorneys alike. Any law firm (big or small) can give bad advice, attorneys can (but shouldn’t) be crass, and malpractice suits can (and usually do) take years – especially if the appellate courts are involved.